Central R.R. & Banking Co. v. Curtis

• Decision Date: 08 July 1891
• Citation: 13 S.E. 757,87 Ga. 416
• Parties: Central Railroad & Banking Co. v. Curtis. Curtis v. Central Railroad & Banking Co.
• Court: Georgia Supreme Court

13 S.E. 757

87 Ga. 416

Central Railroad & Banking Co. v. Curtis.

Curtis v. Central Railroad & Banking Co.

Supreme Court of Georgia

July 8, 1891

Syllabus by the Court.

1. The court has power to pass an order during term allowing until the hearing of the motion to file the brief of evidence; and if the hearing by subsequent order be regularly continued from one time in vacation to another, the case having in term been set down for hearing in vacation, the judge may approve and allow the brief of evidence to be filed at or before the hearing, though he may not be absolutely bound to do so. But quaere, where the act of 1889 is applicable and insisted upon, must not all briefs of evidence be filed within 30 days after the trial?

2. There was no abuse of discretion in denying a continuance on account of the discovery of evidence pending the trial, it not appearing then or afterwards, otherwise than by hearsay that the newly-discovered witness could or would testify to any material fact whatever, the party or his counsel not having had any personal communication with him.

3. It is discretionary with the court to reopen a case for the re-examination of a witness.

4. It is negligence per se for a railroad company, in violation of a valid municipal ordinance, to obstruct with standing cars or locomotives a public street or space in actual daily use by the public; and that the municipality may have acquiesced passively in violations of the ordinance will not excuse such negligence.

5. The various rulings complained of in other grounds of the motion are not cause for a new trial.

Cross-errors from superior court, Houston county; A. L. Miller, Judge.

C. M Curtis sued the Central Railroad & Banking Company of Georgia for damages for personal injuries. Judgment for plaintiff. Both parties excepted, and brought error. Affirmed.

The following is the official report:

Curtis brought his action for damages for personal injuries against the railroad company, alleging, in brief: He was traveling along a public street in the town of Ft. Valley, driving a horse hitched to his buggy or cart and leading another horse and as he neared the public crossing where the railway crossed the street, it being the principal crossing in the town, and in the business part thereof, a train of cars was standing completely obstructing the crossing, which compelled him to stop and wait; that while so waiting the train was divided, the engine moving from the train, leaving a car towards the left of the street, near to and just missing the usual wagon route, and extending into the street, the engine moving just to the right of the wagon-way, but stopping in the street, leaving only a narrow way for vehicles to pass through, and obstructing much of the street, in violation of the town ordinances, which made it unlawful for any train engine, or cars to obstruct any street for longer than five minutes; that this obstruction was maintained for more than ten minutes, which petitioner knew; that seeing this way open, and not knowing when the locomotive or car would be moved, and having waited, and knowing from the nature of his horses, which were of ordinary gentleness, that he could safely pass between the car and the locomotive, he began to drive along the highway across the crossing, and when he had reached the track, and was between the car and the locomotive, the employes of defendant, without using all ordinary and reasonable care and diligence, suddenly, and without warning, let off steam from the locomotive, (which was standing with the pilot towards the opening,) and it began puffing, which, together with the close proximity of the locomotive and car, frightened his horses, causing one or both of them to rear and plunge, and the led horse became entangled in the vehicle, and from the fright and unmanageableness of his horses, from which he was then and there thrown and injured, etc. No plea of defendant appears in the record. The jury found for the plaintiff, and during the term at which the verdict was rendered defendant moved for a new trial on various grounds. The judge presiding passed an order that plaintiff or his counsel show cause, during the term or as soon as counsel could be heard, why the motion should not be granted, and that defendant have until the hearing to perfect and amend the motion by adding other grounds if it desired, and that defendant have until the hearing to make out and perfect brief of evidence in the case. Afterwards, during the same term, the defendant applied for and obtained an order from the judge then presiding (a different judge from the judge before whom the case was tried) that, it appearing that the motion could not be heard during the term, it was ordered that it be continued to November 15th, to be then heard before him; that plaintiff or his counsel show cause before him on that date why the new trial should not be granted, and in the mean time this order to operate as a supersedeas. On November 15th, at chambers, the hearing of the cause was continued until November 22d, by order of the judge, and it was ordered that movant have until that time to complete and perfect the motion for new trial and brief of evidence, and to give notice of this hearing to counsel for defendant. It was recited in this order that the brief of evidence and motion for new trial had been already prepared and put in the hands of the judge who presided in the cause for approval, and that this continuance was made because of inability of counsel for defendant to be present on account of engagements in other courts. The hearing was again continued from the 22d of November until the 6th day of December, and in the order of continuance it was ordered that the movant have until the 5th day of December to perfect the motion and brief of evidence. On the 6th of December it was again continued to the 20th of December, and it was ordered that the parties have until that time to agree on or perfect the motion and brief of evidence. On December 20th the hearing was again continued to the 3d day of January, 1891. The brief of evidence was agreed to by counsel on November 19, 1890, and was approved, at chambers, December 20, 1890, and ordered filed in the clerk's office as the brief of evidence. All of the above continuances were made at chambers, except the first mentioned. The continuances, except the first named, were by consent of counsel, counsel for Curtis reserving the right to take exceptions to any defects in the proceedings. When the motion came on to be heard on January 3d, counsel for Curtis moved to dismiss it, on the ground that the order continuing the cause to a hearing in vacation had never been agreed to by Curtis or his counsel, nor had they been served in any manner when that order was signed, and that said order gave no right or privilege to movant to file a brief of evidence during vacation, which brief was never perfected or filed until after the adjournment of the court. The judge overruled both the motion to dismiss and the motion for new trial. The railroad company excepted to the overruling its motion, and Curtis, by cross-bill, excepted to the overruling his motion to dismiss.

In the motion for new trial, in addition to the usual grounds, that the verdict was contrary to law, evidence, etc., it was alleged that the court erred in refusing to continue the case, on the motion of defendant's counsel, made after the evidence had been closed on both sides, and after one of the counsel for plaintiff had made his opening argument to the jury. In making the motion counsel for defendant said that he had on that morning discovered a witness whose evidence would be, in his opinion, material, and that he did not know or hear of it until that morning; that the witness' name was Eb Everett; and from what Everett's uncle told counsel that morning Everett would swear, from what Everett told his uncle, that the way and track were entirely open and unobstructed when Curtis attempted to cross; that when he got nearly across, his horse hesitated for some cause, and he struck him with his whip, and the horse jumped, and that jerked him back, and the other horse commenced rearing, and got excited, and that was the way it happened; that this witness was not present, but counsel thought his uncle stated that he was employed by the S. A. & M. R. R.; that counsel had no knowledge of the existence of this witness himself; that the management and preparation of the case had been entirely in the hands of himself and the local counsel, and he had had no communication whatever from the officers or employes that would lead them to expect the existence of this witness, the only information he had about it being what Everett's uncle told him, and he could have the uncle brought in and sworn if desired. The local counsel stated that he had no knowledge of what Everett would swear,...